California Supreme Court Grants Expedited Hearing On Prop 8 Challenge

Court Orders Respondents to Show Cause Why Challenge to Prop 8 Should Not Be Granted.

The California Supreme Court today decided, in closed-door session, that the Court would take up the Constitutional challenge to Proposition 8, which passed November 4, banning marriage except between a man and a woman. The Proposition passed 52 to 48 percent.

The Court set an expedited briefing schedule, asking the parties (the State of California, and individuals representative of those whose rights have been diminished by the terms of Proposition 8), along with the official proponents of the proposition, to file papers addressing three key issues:

1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (See Cal. Const. art. XVIII, sec. 1-4.)

2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The argument under the first question presented is essentially that a fundamental right (marriage) granted under the California Constitution (as interpreted by those who interpret such things - the State Supreme Court) cannot be removed from a "suspect class" (in this case, based upon gender and/or sexual orientation, but generally any "class" of people against whom discrimination would be suspect - e.g.: based upon gender, race, national origin...) by a mere "Amendment" to the Constitution by a majority of voters. Rather, before such rights, which have been determined to be Constitutional rights in California can be taken away, the Constitution must be "revised" -- which requires a 2/3 vote of the legislature (or a Constitutional Convention) in addition to a majority vote of the people of the State.

Note that the questions presented are questions of California law, under the California Constitution; therefore, any determination which grants greater rights to individuals than might be available under the U.S. Constitution would not be appealable to the U.S. Supreme Court.

While the Prop 8 ban remains in effect pending the Supreme Court ruling in the matter, the Court has set an expedited hearing schedule. Deadlines for the various briefs to be filed by the interested parties are between December 19, 2008 and January 21, 2009. The Los Angeles Times reports that hearing on the Constitutionality of Proposition 8 is expected in March, 2009. The Court currently is scheduled to hearing oral arguments during the first week of March, 2009.

Proposition 8 supporters have promised to launch a drive to recall any Supreme Court Justice who finds Proposition 8 unconstitutional. They have previously promised such a campaign against those who voted in May of this year the the Constitution forbade discrimination against gays and lesbians in marriage. (A copy of the May 15, 2008 decision in "In re Marriage Cases" is available here. Copies of the legal documentation in support and in opposition to that decision is online here.)

A copy of the Court's press release on today's decision is here.

Copies of all legal papers supporting the request for hearing can be found on the Court's website here, as may letters submitted in support of those petitions.

Six of the seven Supreme Court justices voted to grant the expedited hearing; one voted for an immediate stay on Proposition 8, to keep it from being an enorceable provision pending the Court hearing, and one voted against the hearing, but would hear a separate petition to determine the status of those of the same gender who married while such marriages were legal.

Six of the seven California Supreme Court justices were appointed by Republican governors.

(Photo: Justices of the California Supreme Court.)